Formal defect in property description justified withdrawal with liberty to file a fresh suit under Order XXIII Rule 1(3) CPC.

A defect in the suit property description may amount to a formal defect under Order XXIII Rule 1(3) CPC if it creates a serious identification problem and may render any decree inexecutable. The court may permit withdrawal with liberty to file a fresh suit only where it is satisfied that the suit must fail by reason of such a defect or other sufficient grounds. On the facts, the property was described with an incorrect survey number, while the revenue records and settlement deed referred to a different survey number, affecting identification of the subject matter. The defect was treated as formal, and withdrawal with liberty to institute a fresh suit was held permissible.

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Issues: Whether the defect in the description of the suit property by survey number constituted a formal defect within Order XXIII Rule 1(3) of the Code of Civil Procedure, 1908, so as to justify withdrawal of the suit with liberty to file a fresh suit.

Analysis: Permission to withdraw a suit with liberty to institute a fresh suit can be granted only when the court is satisfied that the suit must fail by reason of a formal defect or that sufficient grounds exist. A formal defect is a defect of form that does not affect the merits of the controversy and may include defects such as incorrect valuation, insufficient court fee, misjoinder, or confusion in identification of property. Where the description of the suit property itself is erroneous in a manner going to the root of the subject matter, the defect may render the decree inexecutable and therefore amount to a formal defect. On the facts, the suit was filed with the property described as Survey No. 192/9, while the revenue records and subsequent settlement deed referred to Survey No. 192/14, creating a serious identification problem affecting execution of any decree.

Conclusion: The defect was a formal defect within Order XXIII Rule 1(3)(a) of the Code of Civil Procedure, 1908, and the plaintiffs were entitled to withdraw the suit with liberty to file a fresh suit. The High Court's interference with the trial court's discretion was unjustified.

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